The legal clinic did not sufficiently link its expertise to the specific issues in the case
The Ontario Court of Appeal has dismissed the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic’s (CIPPIC) motion for leave to intervene in an international trade dispute.
Vento Motorcycle Inc. initiated an arbitral claim against Mexico, contending that Mexico's denial of North American Free Trade Agreement (NAFTA) preferential import tariffs on motorcycles assembled by Vento in the United States resulted in significant business losses. The arbitral tribunal dismissed Vento’s claim, and the Superior Court of Justice upheld this dismissal. Vento appealed this decision.
In its appeal, Vento argued that the arbitral tribunal denied it procedural fairness by preventing one of its witnesses from submitting additional evidence in response to a credibility challenge by Mexico. Vento claimed this restriction left it unable to present its case, violating Article 34(2)(a)(ii) of the Model Law on International Commercial Arbitration, which is part of Ontario law under the International Commercial Arbitration Act, 2017.
CIPPIC sought to intervene on the issue of procedural fairness under the Model Law, proposing a "material" procedural fairness violation test. This test would set aside an arbitral award if a procedural fairness violation could reasonably have affected the outcome. Vento supported CIPPIC's intervention, while Mexico opposed it.
CIPPIC is a legal clinic based at the University of Ottawa that advocates for public interest issues at the intersection of law and technology. It has intervened in several significant Supreme Court of Canada cases, including those concerning arbitration. However, the Court of Appeal found that CIPPIC did not sufficiently link its expertise to the specific issues in this case, which does not involve law and technology or underrepresented groups.
The court noted that CIPPIC did not provide a draft factum outlining its detailed arguments and cited no authority supporting its proposed legal test. The appeal involves two sophisticated parties in a narrow, fact-specific international trade dispute without broader access to justice or constitutional issues. Vento and Mexico had already presented comprehensive arguments on the procedural fairness test applied by the application judge.
The court expressed concerns that CIPPIC's intervention could unnecessarily expand the scope of the appeal, increasing costs and complexity and causing injustice to the immediate parties. CIPPIC's suggestion to harmonize procedural fairness standards across different areas of law risked broadening the appeal beyond the specific issue of whether Vento's inability to respond to a credibility challenge left it unable to present its case under the Model Law.
Balancing the nature of the appeal against CIPPIC’s proposed contribution and the potential prejudice to the parties, the Court of Appeal concluded that CIPPIC's motion to intervene must be dismissed.
